Botha v Police
[2016] NZHC 248
•23 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-393 [2016] NZHC 248
BETWEEN LOUIS BOTHA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 February 2016 Appearances:
S C Blake for Appellant
P R B Winiata for RespondentJudgment:
23 February 2016
JUDGMENT OF M PETERS J
This judgment was delivered by Justice M Peters on 23 February 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau
Counsel: S C Blake, Auckland
BOTHA v POLICE [2016] NZHC 248 [23 February 2016]
[1] The Appellant appeals against conviction for driving with excess breath alcohol.1 The conviction followed a Judge-alone trial before Judge Henwood in the District Court at Manukau.2
Approach on appeal
[2] The Appellant has a general right of appeal against conviction. To succeed the Appellant must persuade the Court that there has been an error or irregularity or occurrence affecting the trial that has created a real risk that the outcome of the trial was affected or that has resulted in a trial that was unfair.3
[3] The sole ground of appeal is that the Judge erred in concluding that there had been “reasonable compliance” with s 69(1)(d) of the Land Transport Act 1998 (“LTA”). “Reasonable compliance” is a reference to s 64(2) LTA.
Facts
[4] At approximately 4 pm on 6 June 2015, a member of the public notified the Police by telephone that he was following “a potential drunk driver”, that is the Appellant. The person subsequently telephoned to say the driver was parked at Liquorland in Howick.
[5] Constable Spraggs and a colleague were on patrol. They arrived at Liquorland at approximately 4.20 pm, having been forewarned that they might be dealing with a “drunk driver”. The constable’s evidence was that the Appellant had red, blood-shot eyes and that his breath smelt of alcohol. The Appellant admitted to consuming one can of beer.
[6] Constable Spraggs proposed to require the Appellant to undergo a breath screening test without delay, as he had power to do pursuant to s 68 LTA. A search
revealed, however, that there was no breath screening device in the Police vehicle.
1 Land Transport Act 1998, ss 11(a) and 56(1).
2 Police v Botha [2015] NZDC 21693.
3 Criminal Procedure Act 2011, ss 229(1) and 232.
[7] Constable Spraggs then required the Appellant to accompany him to the Ormiston Police Station, a 15 to 20 minute drive away, to undergo an evidential breath test. The Ormiston Police Station was the nearest open station at the time. The Appellant complied, the test was administered, the Appellant’s breath alcohol level was measured at 658 micrograms of alcohol per litre of breath (“mcg/l”), and there is no suggestion that there was any flaw or omission in carrying out the required procedures.
[8] It is common ground however that, in requiring the Appellant to accompany him, Constable Spraggs was not in strict compliance with the governing provision, being s 69(1) LTA.
[9] Section 69(1) confers power on an enforcement officer to require a person to accompany an officer and undergo an evidential breath or blood test only in the particular circumstances listed in s 69(1), and the only one which might possibly have applied was s 69(1)(d). The relevant parts of s 69 are as follows:
69 Who must undergo evidential breath test
(1) An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test or a blood test (or both) when required to do so by the officer, if, —
(a) in the case of a person who holds an alcohol interlock licence or a zero alcohol licence….; or
(aa) in the case of a person who is apparently younger than 20,
…; or
(ab) in the case of any other person, the person has undergone a breath screening test under section 68…; or
(b) Repealed.
(c) The person fails or refuses to undergo a breath screening test without delay; or
(d) The person could be required to undergo a breath screening test without delay under section 68 but cannot be tested because either a breath screening device is not readily available or for any reason a breath screening test cannot then be carried out, and there is good cause to suspect that the person has consumed drink.
...
[10] In describing s 69, the Supreme Court said in Birchler v Police:4
[3] … In four circumstances s 69 authorises such an officer to require the driver to accompany the officer to a place where it is likely that the driver can undergo an evidential breath test or a blood test (or both). The first and commonest of these circumstances is where the driver has undergone a breath screening test under s 68 and it appears to the officer that the test indicates that the proportion of alcohol in the driver’s breath exceeds
400 micrograms of alcohol per litre of breath. A requirement to accompany can also be made where the driver could be required to
undergo a breath screening test but cannot be tested because either a
breath screening device is “not readily available” or for any reason a breath screening test cannot then be carried out, and there is good cause to suspect that the driver has consumed “drink”.
[4] Under s 69(4), if a driver has accompanied an officer to a place of the kind described in s 68, he or she may be required to undergo without delay an evidential breath test (whether or not there has already been a breath screening test). But of course there must first have been a lawfully given requirement to accompany. A driver must accompany the officer to a place when required to do so and can be arrested without warrant if he or she does not comply with a lawful requirement.
[11] Returning to the requirements of s 69(1)(d), there was and is no dispute that the Appellant could have been required to undergo a breath screening test without delay under s 68 LTA and that that there was good cause to suspect that the Appellant had consumed drink within the meaning of the LTA. Accordingly, those prerequisites were met.
[12] The evidence did not establish, however, that a breath screening device was “not readily available or for any reason a breath screening test” could not “then be carried out”. Authorities touching on what is meant by “readily available” and how issues on that score are to be addressed are Grant v Auckland City Council and Bell v
Ministry of Transport.5 I do not need to address those authorities because it is
accepted that the evidence in this case fell short of establishing strict compliance.
[13] Although they did not have a device in their vehicle, neither officer enquired by radio, whether en route to Liquorland or at the scene or both, as to whether
4 Birchler v Police [2010] NZSC 109 at [3] – [4].
5 Grant v Auckland City Council SC Auckland M640/77, 13 December 1977; and Bell v Ministry of Transport SC Auckland M371/77, 10 May 1977.
another vehicle might be able to bring them a breath screening device more quickly than relocating to the station. Counsel for the Appellant referred me to R v Mangos, Police v Bell, Taylor v Police and Brown-Cole v Police, in which similar factual scenarios presented themselves.6 None, however, is directly on point.
[14] The Crown accepts that the prosecution would have failed but for the Judge’s finding that there had been reasonable compliance with s 69(1)(d) within the meaning of s 64(2).
[15] Section 64(2) LTA provides:
64 Defences
(2) It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, and 77 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.
[16] In determining whether there has been reasonable compliance with the applicable provisions, it is helpful to have regard to the two considerations referred to by the Court of Appeal in R v Aylwin, even if they are not determinative of every case, as counsel for the Appellant submitted:7
[41] The test as to whether there has been reasonable compliance has been seen as involving the consideration of two questions, as set out in Soutar v Ministry of Transport [1981] 1 NZLR 545 at 550 (CA) and Aualiitia v Ministry of Transport [1983] NZLR 727 at 729 (CA). The first question is whether the extent of the non-compliance gives rise to a reasonable doubt about the correctness of the result. The second question is whether there is a risk of the defendant suffering injustice or unfairness. The need for this test to be applied liberally was reiterated by this Court in Shaw v Police CA212/95 21 September 1995. Accordingly, where the non- compliance does not create the possibility or likelihood of error, it should be saved by reasonable compliance.
6 R v Mangos [1981] 1 NZLR 86; Police v Bell HC Wellington AP177/01, 9 November 2001; Taylor v Police HC Napier AP3/2002, 1 March 2002; and Brown-Cole v Police HC Auckland M1306/83, 7 November 1983.
7 R v Aylwin [2008] NZCA 154 at [41].
[17] If one has regard to the first of the considerations in Aylwin, as the Judge said there is no suggestion that the constables’ omission gave rise to a reasonable doubt about the result of the evidential breath test.
[18] As to whether there is a risk of injustice or unfairness to the Appellant, counsel for the Appellant submits that it would have taken the constables a matter of moments to make enquiry, whether en route or at the scene, as to whether a breath screening device might be readily available, and that to require the Appellant to accompany without at least making that enquiry should not be excused. As counsel submits, the power to require a person who has not undergone a screening test to
accompany is substantial.8
[19] I accept that latter submission but the issue is whether in the circumstances the Judge erred in determining that there had been “reasonable compliance” with the applicable provisions.
[20] As I have said, there was compliance with the two prerequisites in s 69(1)(d) to which I have referred in [11] above. The constables did search the vehicle for a device. There is no suggestion that they made a deliberate decision to depart from the statutory procedure. The complaint is that they omitted to take another step which might have yielded a device. And, as I have said, no point has been taken as to the manner in which the police undertook subsequent procedures.
[21] For these reasons, I am not satisfied that the Judge erred in finding that there was reasonable compliance with s 69(1)(d). I dismiss this appeal accordingly. 9
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M Peters J
8 See Birchler v Police, above n 4, at [4] and [17].
9 For the sake of completeness I record that no argument was advanced to me that the Appellant was subject to arbitrary detention, as was before the Court in Chadderton v Police [2014] NZCA
528, a case not cited to me but which I raised with counsel during the hearing of the appeal.
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